Thursday, July 28, 2016

You get bonus cash if you can guess the alignment of the justices in today's opinion.

The question is who gets to decide whether or not an arbitration agreement permits classwide arbitration: the arbitrator, or the court?

The majority opinion says that it's a contractual question, and in the present case, the arbitrator gets to decide. The dissenting opinion says that it's instead a gateway issue presumptively to be resolved by the court.

Who's on what side?

The answer . . . .

Justice Werdegar writes the majority opinion, joined by Chief Justice Cantil-Sakayue and Justices Liu and Cuellar. By contrast, Justice Kruger authors the dissenting opinion, joined by Justices Chin and Corrigan.

Wednesday, July 27, 2016

"Minor’s [and] two of his friends. . . . entered an Oakland home through a back window
and rear door and took a watch, a camera, and loose change from a large jar. A neighbor
reported the burglary, and Minor and his friends were apprehended a few blocks away.
. . . Minor began smoking marijuana when he was nine years old and had
begun smoking it almost daily, including the date of his arrest. . . . Minor denied involvement in
gangs, but said he associated with members of the Norteños gang a year prior to his
arrest.

[] Minor was in danger of failing most
of his middle school classes. Minor did not turn in class work or attend his classes
regularly. He also had various suspensions and reprimands for behavioral issues,
including refusing to go to his workshops after class, cursing at the school principal and
his staff, taking a knife and other contraband to school, and having gang-related graffiti in his locker; matching graffiti was also found on the wall around the corner from Minor’s
locker."

Sadly, I fear that, in all probability, this life will not go, or end, well.

Tuesday, July 26, 2016

It may also be one of, if not the, most important opinions of the month.

At issue is whether it's permissible for a district attorney to "blanket paper" a judge that has made adverse rulings against that office -- a practice that may effectively take away the judge's power to hear criminal cases. Here's how Justice Aronson concisely describes the facts of this particular case:

"Respondent court denied petitioner’s section 170.6 motion because it
concluded the motion was part of the Orange County District Attorney’s (district
attorney) coordinated campaign to 'blanket paper' Judge Thomas Goethals to prevent
him from hearing murder trials in retaliation for Judge Goethals’s rulings in three earlier
murder cases. As described more fully in both the lead and dissenting opinions,
Judge Goethals found the district attorney’s office repeatedly engaged in misconduct in
violation of the defendants’ constitutional rights, and in one of the cases he found the
misconduct created a conflict of interest requiring the office’s recusal. Respondent court
found the campaign to prevent Judge Goethals from hearing long cause murder trials
substantially interfered with the court’s ability to administer criminal justice in Orange
County, and thereby violated the separation of powers doctrine."

As informed readers may know, this is not an isolated occurrence. It doesn't happen to every, or even most, judges. But it happens to some. And the possibility of such a practice may also have a chilling effect even on judges who are never papered. If your ability to hear criminal cases at all -- your area of practice and interest -- depends on the district attorney's favor, your recognition of that reality is something that never goes away.

Now, maybe that's a good thing. Maybe it "reins you in" and stops you from making crazy rulings. Or maybe it's a bad -- or even profoundly bad -- thing. Reasonable minds might differ on the issue.

Thursday, July 21, 2016

The Ninth Circuit concludes today that the defendant waived its right to arbitrate. And it's exactly right. This is, indeed, a pretty classic -- and easy -- example of how to waive your rights.

It'd almost be enough itself to mention that the defendant litigated the case in federal court for seventeen months before moving to compel arbitration. But, as the opinion reflects, there's even more than that.

If you want to cheaply and easily arbitrate -- or, as here, to use arbitration to stop a class action -- then you need to do so quickly. Otherwise it ain't so cheap and easy.

Wednesday, July 20, 2016

I was wondering when I read it why the Ninth Circuit published the order. It's an incredibly short thing. It basically just says (1) we hereby grant you permission to file a reply, and (2), sure, we've decided to hear your Rule 23(f) (denial of class certification) appeal.

That's not a decision on the merits. That's a routine thing. That's why this just a decision for the motions panel. That's a funny thing to publish. (Especially when, as here, the order is so incredibly short.)

Nonetheless, once I read the fifth sentence of the order, I understood why the Ninth Circuit published the thing. And it's sort of cool.

The district court denied class certification. Plaintiffs asked permission to appeal, and today's order granted permission. But the district court denied apparently certification based at least in part on its feeling that class counsel might not be a "vigorous" advocate for the class, and the motions panel is keenly interested in whether that's a permissible basis upon which to deny certification.

So the panel drops a sentence that essentially says so, and instructs the parties: "In addition to all other issues the parties may wish to raise in this appeal, the
parties shall brief the issue of whether the district court should have considered less
drastic alternatives before denying class certification based on concerns with the
vigor of class counsel’s representation." Then drops a citation to make crystal clear what the panel's talking about: "See, e.g., Busby v. JRHBW Realty, Inc.,
513 F.3d 1314, 1323-24 (11th Cir. 2008) (“In the event that class counsel does act
improperly, the ordinary remedy is disciplinary action against the lawyer and
remedial notice to class members, not denial of class certification.”) (internal
citation omitted)."

But the motions panel doesn't stop there. And that explains why the order's published -- and also why someone out there might potentially be interested in following up on it.

The motions panel then tells the world that it's sufficiently interested in the topic that it's happy to hear opinions on the subject. Entering the following order: "The court sua sponte grants any individual or entity leave under Federal
Rule of Appellate Procedure 29(a) to file an amicus curiae brief addressing the
above-stated issue in this appeal. The brief(s) shall comply with Federal Rule of
Appellate Procedure 29(c) and (d); the due dates are governed by Rule 29(e)."

End of published order.

So there you have it. If you're interested in the subject -- and it's an interesting one -- feel free to file a brief. Judges Kozinski and Paez, at least, are happy to hear your views.

For what it's worth, I'm probably leaning the same way I think these judges are. Though I might be a bit more conflicted than they are. (Though I admit I'm reading tea leaves here, at least on their end.)

I get that if you've got a problem with the lawyer, maybe the right remedy is to lean on the lawyer rather than deny the class a remedy by denying certification. Seems right.

At the same time, it's hard to lean on the lawyer. At least effectively. They can do a lot of things that you can't see. Particularly if they lack "vigor". And, sure, you can report them to the bar, as well as deny approval of any settlement that you don't like.

But, truthfully, this sort of supervision not only takes time and effort, but is, I think, not likely to be supremely effective. You can only do so much. And what a district court may well be worried about in a particular case is that the lawyer will be manifestly incompetent, but rather that he will simply be exceptionally subpar. Which in turn will hurt the class.

It seems to me that the best remedy in such cases, to be honest, would not be to rely upon discipline or other supervisory remedies to solve the problem -- since I don't think they (typically) will -- but to instead adopt or incentivize a system that'll address the issue directly. What a district judge may well want in such a setting is to have a different class counsel, and they're trying to get at that by denying class certification in the hopes, perhaps, that someone else will step forward.

Now, if there's already a parallel class action pending filed by another lawyer, maybe denying class certification in the present case -- and doing so expressly based on counsel concerns -- solves the problem. That way the other class action can go forward, and everyone wins. So, in that setting, I think denying certification would actually be legitimate. Perfectly fine. And I would not want to do what the Eleventh Circuit potentially says to do: grant certification in the present case and just rely on discipline. I don't think that'd either solve the problem or be the best of the available alternatives.

In most cases, however, there's probably not a parallel class action pending. And while I'd understand it if a district court thought "Hey, I'll deny certification here for class counsel reasons, and hopefully a different class action lawyer will pick up on my order and file a new (identical) class action," that may be a pipe dream in a lot of cases, and there may be statute of limitations or other problems with such an approach as well.

So, in the typical case, I lean towards agreeing that the judge shouldn't just deny certification on the hope that there might be a better lawyer out there.

But, to me, that's not the end of it.

Instead, rather than rely on discipline and the like, if I held (as I think the Ninth Circuit will) that the alleged "lack of vigor" of class counsel shouldn't typically be a legitimate basis upon which to deny certification, I'd also expressly mention other perfectly permissible alternatives that district judges may well want to consider when confronting such a setting. For example, I think that, while granting certification, the district court could permissibly -- and perhaps should -- "invite" intervenors or other class counsel to join the litigation. Not by name, of course, but make it clear that there are concerns here, and that we're more than happy to look favorably upon someone else coming in and trying to take over the role as lead class counsel. My guess is that, most of the time, that'll do the trick, and that there are more than enough "aggressive" class counsel out there who'd pick up on the suggestion and be willing to take on that role. The district court need not conduct a "reverse auction" or any of the other fancy procedures that are sometimes suggested in competing class action counsel cases. A mere word may be sufficient. That, when combined with approval of class certification, should in all but the most extraordinary cases do the trick.

But, to be honest, if all the district court did was to approve the class, and/or no one came forward to "help out" the existing (potentially lazy) counsel, to tell you the truth, I'd have problems with that. A lazy class counsel can do a lot of damage. A lot. Sure, the class may get some relief. But the class may also lose, sometimes solely due to the attorney. And, in other cases, the class may get pennies on each dollar to which they're legitimately entitled; again, solely because of the attorney. And approving classes headed by lazy counsel also systemically encourages and incentivizes continued litigation of this type, and that's a bad thing as well.

So, in an appropriate case, I think that'd be a sufficient reason, if no one else stepped forward, to decertify the class even after having originally certified it. Or, at a very minimum, to try to prevent such a problem in the first place by inviting intervenors and/or suggesting that existing class counsel obtain co-counsel. Those things, unlike the largely-hypothetical threat of discipline, may actually solve the problem, while simultaneously permitting the class (and the judicial system) to obtain the relief that we want.

So, were I to write an amicus brief, that's probably what I'd say.

Though, having now said it, I'll probably dispense with actually filing a brief.

But if you disagree, or think there's a better approach, I strongly encourage you to take up the Ninth Circuit's opening today and file a brief of your own. 'Cause it's an important issue.

Tuesday, July 19, 2016

The Ninth Circuit holds that the "mailbox rule" applies to petitioners who seek relief from deportation and who are in detention at the time they file their appeal, and that the required declaration that states that the petitioner is indeed in detention and placed the appeal in the facility's outgoing mail system on X date may, but need not, be filed with the original papers, and instead may potentially be filed later.

The Ninth Circuit cautions, however, "the court has discretion to reject or to give less
weight to a declaration or affidavit that does not accompany
the inmate’s legal filing." It does so on the basis of the reasoning of the Eighth Circuit that "[a]n
affidavit filed long after the events in question
have occurred tends to be less trustworthy
than a promptly-recorded statement because
the passage of time dulls memories."

That's true. To a degree. Memories about precisely what day it was when you did Y may indeed fade over time.

But there's another reason to credit early-filed declarations as well.

Sometimes, you only realize that a filing was due on Day X after the court, or your opposing party, files papers that say that your petition should be dismissed because it wasn't received until Day Y. It may potentially be only at that point that you realize that, crap, it was due on Day X. You at that point discover the mailbox rule, and -- now cognizant that your mailing needed to be on Day X -- submit a declaration that says, yep, that's exactly when I mailed it. You have a large incentive to so recall.

By contrast, if you originally submit a declaration that says you mailed it on Day X, that may not prove that you mailed it on that day. But it at least helps to establish that at the time you filed your petition, you likely knew at the time it was due on Day X, and that your declaration wasn't merely a response to someone belatedly telling you that it was due on that day. And if you knew it was due on Day X at the beginning, that's some evidence that you likely in fact filed it by that day.

So it's not just "faded memories" that an early filing may help with. It's also any alleged fabrication.

Monday, July 18, 2016

Opinions like this one today seem to me the twenty-first century equivalent of trying to figure out how many angels can dance on the head of a pin.

The dispositive question is whether the ostensibly independent shareholders of Wynn Resorts are sufficiently independent that they could be expected to decide to sue Steve Wynn, alongside other board members, on behalf of the corporation. The truth, for anyone who knows this industry, is obvious. Of course the board members aren't going to authorize such a lawsuit. Were there infinite numbers of parallel universes, in none of them do these board members vote to bring such a suit. Zero. The hand-picked members of the board simply aren't going to do that, and to pretend otherwise is silly.

Yet the federal courts nonetheless go through a facile exercise of trying to ascertain whether these board members are "really" independent and "could" decide to bring a lawsuit such that a demand on the board would be futile. I understand that such an inquiry is required by doctrine. But it's as silly as the angel/pin dispute. There's no real "there" there. It's an utterly artificial inquiry. Entirely divorced from the practical realities of many -- if not most -- modern board of directors. Especially in situations like this one.

So, sure, Judge O'Scannlain's opinion makes sense. Plus has a neat little stateless-citizen-federal-diversity-jurisdiction issue thrown in there for good measure.

But I nonetheless can't help thinking that it's the equivalent of an opinion that says that exactly 48.6 angels can fit on an average-size pin manufactured in the eastern seaboard of the United States. It really is that far divorced from reality.

Even though I fully understand that, yes, if the relevant precedent says that it's dispositive whether 45 or more angels can fit, we indeed are required to go through this entirely silly exercise.

Thursday, July 14, 2016

"Plaintiff went to Here Lounge to wait for
her friend. At the time, Here Lounge was a very popular West Hollywood dance club
and bar. On Sundays, as many as 500 people patronized the club. To attract customers,
Here Lounge hired promoters who used social media to encourage attendance at special
events with sexy themes. For example, the theme when Plaintiff visited the bar was 'size
matters.' Here Lounge also fostered a sexually charged atmosphere by permitting
bartenders to wear nothing but underwear."

Welcome to West Hollywood, as it were.

"Here Lounge designed the bar to have a common restroom area accessible to both
men and women. On busy nights, a long line of patrons waited to use the restrooms. The
restroom area included four adjacent lockable unisex restroom stalls, an open area behind
the stalls with a urinal trough, and two larger Americans with Disabilities Act (ADA)
compliant stalls off to one side. Unlike the four unisex stalls, the ADA stalls had
lockable, full-length doors. Though each ADA stall was assigned a gender and the men’s
ADA stall was adjacent to the urinal trough, patrons treated the ADA stalls as unisex and
used them interchangeably."

Unisex bathroom. No biggie. Consistent with the West Hollywood theme.

"On a nightly basis, Here Lounge hired as many as 12 security guards to check
identification at the door and maintain order in the club. On Sunday nights, it posted
eight to 10 guards throughout the club including one or two stationed on either side of the
four adjacent unisex stalls in the restroom area. The restroom area security guards were
instructed to prevent more than one patron from entering a single bathroom stall at the
same time. If a security guard saw two or more people entering a stall, he would stop
them. If more than one person entered a stall before the security guard could intervene,
he would knock and demand that they exit. The guards routinely took action to prevent
sexual activity, drug use, and conflicts among patrons in the restroom area."

Exactly right. You know full well that there are potential problems in the bathroom. Sex, drugs, etc. That's a problem whether the bathroom's for one gender or for all of 'em. So good job here. Indeed, I was somewhat surprised to hear that of the dozen or so security guards, a full two of 'em were often in the bathroom. That's a well-guarded bathroom.

"On that Sunday, Plaintiff arrived at around 11:39 p.m. Feeling intoxicated,
Plaintiff drank water and sat on the patio. Some 15 to 45 minutes later, Plaintiff went to
the restroom area, where no guards were present. Although the club’s policy was to have
one or two guards in the restroom area, the guards had discretion to leave their posts in
the restroom area and roam the club when there were only a few dozen patrons in the
club and very few in the restroom area. While roaming, they periodically checked on the
restroom area."

Oh. Yeah. Well, that's probably not a good idea. If you're worried about the bathroom, you need to stay worried about the bathroom. Not just sorta-maybe-check-it-out-on-occasion worried.

You already know there's a lawsuit (and appeal). You've now read the background. So you probably know already what transpired. Here are the gory details:

"Plaintiff went into an ADA restroom stall and shut the door. As was common
among patrons of Here Lounge, Plaintiff did not lock the door. While Plaintiff was
turning and sitting down, a man she had never seen before entered the stall. . . . . When Plaintiff stood up to adjust her clothing, [the man] grabbed her shoulders and pushed
her against the wall [and] forced Plaintiff to orally copulate him and forcibly had
vaginal intercourse with her."

Ugh.

Two more terrible details. First, "[b]ased on DNA evidence, the man was later identified as Victor Cruz, a bus boy at Here Lounge." Not some random patron. An employee of the bar. Second, "the assault, which caused Plaintiff to lose her virginity, lasted about five minutes
and ended with Victor ejaculating on Plaintiff’s dress." Double and triple ugh.

Oh yeah. "Plaintiff, bleeding and shaken,
fled the bar and contacted the police with the assistance of a stranger on the street.
Although Here Lounge security found a large puddle of blood in an ADA stall, it did not
connect it to the sexual assault until days later when police investigated the incident.
Victor’s DNA sample matched the sample of DNA taken from semen on Plaintiff’s dress
at the rape treatment center."

What?! There's a rape, the bar's security "finds a large puddle of blood" in the stall in which the rape transpired, but that's sort of par for the course, and they don't "connect it to the sexual assault until days later?" Wow.

Anyway, there's a lawsuit. As you might expect, a darn big one. Against the bar. At which "[t]he jury awarded a total of $5.42 million in damages," apportioning "40 percent
responsibility to Here Lounge and 60 percent to Victor."

The damage award is huge, but understandably so. As for the apportionment, no surprise there either, and you can figure out why. In no universe but our own would a rational factfinder say that the actual rapist was only "60 percent" responsible in this setting, with the bar owners 40 percent liable. Moral culpability in any rational, real sense would be apportioned far differently. But the bar has money, the rapist has none, and there's joint and several liability anyway. So there you have it.

I'm not sure how anyone could reasonably disagree with Judge Nguyen's opinion here.

The Fair Debt Collection Practices Act says that you can't file a debt collection lawsuit in the wrong forum. Defendant did so. That filing transpired on Date X, but the debtor only learned about it on Date Y, which was the date on which she was served with this improperly-filed lawsuit.

When does the statute of limitations start running? Date X or Date Y?

Prior Ninth Circuit precedent on the point is a little unclear and contradictory. But Judge Nguyen's opinion definitively holds that the limitations period starts on Date Y -- the date the plaintiff found out about the lawsuit (via service), not merely the date it was filed.

That seems obviously right to me. The Discovery Rule. Spot on.

The district court held to the contrary, but its decision in that regard is (IMHO) what happens when you read appellate court decisions too broadly.

I understand why the district court erred. It thought the Ninth Circuit had answered the question -- maybe not in an actual "holding," but nonetheless in language that's clear. And it didn't want to be reversed.

But sometimes, faced with unclear precedent, the right thing to do is to do the right thing. The better rule is the one that starts the limitations period on the date the violation was discovered.

Wednesday, July 13, 2016

I feel bad the guy. Otgonbayar Lkhagvasuren came to the United States from Mongolia on a vistor's visa in 2010 and subsequently applied for asylum. He didn't want to go back to Mongolia. Perhaps understandably.

But he doesn't have an actual claim. He says he was a whistleblower in an alcoholic beverages company that he though was corrupt. But that's not going to cut it. As the Ninth Circuit as well as the immigration tribunals below squarely held.

So Mr. Lkhagvasuren will have to go back.

I've got no reason to believe that he wouldn't be a fine citizen. And it's not like the United States is being swamped with citizens from Mongolia -- a country that only has three million of 'em in the first place.

But we've got limits. This is one of them. So back to Mongolia for Mr. Lkhagvasuren.

The Ninth Circuit today issues an opinion that decides important issues about a grand jury subpoena issued for e-mails sent to and from a public official and kept by that official on a private e-mail server kept separate from that person's "official" e-mail account.

An FBI agent is trying to crack an online child pornography/exploitation group. The group is forced to change its names at various times to avoid scrutiny, and in its current iteration, ostensibly pretends to be a group that's interested in PT Cruisers, with the title “ptcruzer".

That's a play on words, however. The title really means "pre-teen cruiser"; i.e., cruising for preteen child pornography or child molestation. But group members post messages that pretend to be talking about cars.

Anyway, the FBI agent infiltrates the group, and locates defendant's profile. "Defendant's user profile for the Yahoo
account included: the nickname “M.D. DADDY,” location of central California, an age
of 35, male gender, marital status of divorced, and occupation of '[f]reelance gynecology
and photographer.' Hobbies were listed as, 'Relaxing, chatting, looking for that one
female who has very few limits . . . my only limits are scat, bloodplay, and permanent
damage.' A favorite quote was listed as, 'Will you shut the fuck up!!! It doesn't hurt that
bad!!!'"

Seems like a guy you might want to investigate. Especially if he's in a "pre-teen cruiser" chat room and sends a message -- which he did -- that says: "Just
wondering if any females out there are near Sacramento, Cali who wanna play with me
and my 7-year-old daughter.”

As an FYI, defendant is allegedly molesting his 7-year old daughter at the time. Apparently he's trying to get others in on the deal as well. The sick bastard.

So then he sends out another group message. You'll see what I mean about the group pretending to talk about cars. The message reads: "Hey all
. . . I am a single male with a 7-year-old almost 8-year-old model. [¶] I have been doing
lots of maintenance on my cruzer (lube jobs, engine play. . . et cetera) but haven't 'opened' it up yet that much. [¶] I am looking for a female passenger to be with me
when I do. And she can do some driving if she wants. [¶] I am in the Sacramento, Cali
area and so should you be too. [¶] I am looking for a long-term relationship as . . . Well
having a cruzer of your own is not necessary but it is a plus . . . lol.”

So now the case gets referred to the California Department of Justice. And an agent for the California DOJ follows up on this lead, creates a Yahoo! account, and writes to the defendant, saying:

“Hi. It's Janette. I‟m not sure if you remember me. I used to be a member of the
ptcruzer but my computer crashed and I am just now back up. [¶] I live in Sacramento
area and if I remember correctly you do too. [¶] I have a 12-year-old daughter Hope.
It's just she and I and we [have] a very open and loving relationship. [¶] You and I
spoke of having things in common but I don‟t want to share too much unless you
remember me. [¶] We can talk more. Janette.”

Defendant takes the bait. He responds the very same day. He says: "Hi. . . Yes, I am a member of the ptcruzer group. . . I don't remember chatting
with you before but would love to chat sometime. I'm usual[ly] on in the evenings at 8
p.m.'ish. Just p.m. me. Would love to talk about you and your daughter and me and
mine.”

Okay, so now the agent tries to reel him in a bit. She responds the next day. And it's a very good response, I think. She says: "Hi. I'm so glad you‟re interested in talking more. It's so hard to find like minded
people that share the same interests, especially with a daughter who's close in
age to mine. [¶] Can you tell me a little bit about yourself? I'm Janette and have a 12-
year-old daughter Hope. She is a beautiful daughter and very curious. I was taught about
my body at an early age and have done the same with Hope. Associate doesn't seem to
agree with this so I must be very discrete. [¶] Hope is my life and I must be very careful.
Obviously, not being a man, I don't have all the tools to help in Hope's teaching. [¶] I
work a lot so it's difficult to be online around 8:00. I will definitely check for you when I
am. Are any other times good for you?”

Defendant's hooked. The next day, he responds: "Hi Janette. I myself also started at a very young age. My daughter is also as
curious as I was when I was her age. Excuse me, but before we go on, maybe I should let you know a little of what I am looking for/not looking for. [¶] Not looking to cyber,
looking to chat. Not looking to C2C/looking to meet. Looking for long-term
commitment and not just a one-time thing. Someone into the same interests as me. [¶]
If this is the same for you, then by all means p.m. me or email me back. LOL. [¶] Also,
do you have any pics? Mine are in my photos if you want to go there.”

So he's not looking to have cybersex. He wants actual contact. Mutual molestation, or whatever else he's into. Maybe share some child pornography as well.

Sounds like a guy definitely worth catching.

Good job getting this far.

But at that point, the California DOJ agent, in my view, massively drops the ball. She waits four days to respond. And when she does respond, she says that Yahoo! seems "difficult to use," so wants to switch their conversation to AOL. Which he presumably finds strange, if only because she's on the Yahoo! forum already. And what's so hard about it anyway?

So he never responds. And continues to allegedly molest his daughter until he's eventually caught and charged some many years later.

I understand that even the police don't necessarily work on weekends. And that guys like this may well be suspicious.

But still. I thought that this could have gone much better than it did.

Monday, July 11, 2016

"In this case, we conclude the death of a structure's inhabitant renders that structure
uninhabited within the meaning of the arson statute."

Well, yeah. I think that's clearly right. If someone dies, say, in his sleep in his bed, and you burn the house down while he's dead, and he's the only one who "inhabits" -- or, more accurately, "inhabited" -- the thing, then, sure, you're guilty of burning down a building, but not an "inhabited" building. Because the guy is dead.

Okay.

But then there's the next sentence:

"This is so even where the arsonists
murder that inhabitant before setting fire to the structure."

Whoa.

Now, look, there's a part of me -- a huge part -- that totally gets where Justice Hoch (and the rest of the panel) is coming from here. A dead guy's a dead guy. If burning down the house of the dead guy in the bed isn't burning an inhabited building (because the guy's dead), then it doesn't matter how the guy died; e.g., that you killed him. He's still dead. Dead guys don't "inhabit" anything any more.

Ergo, by necessity, the same result.

Ditto for the statutory language. The statute says the house has to be "currently" inhabited. When the criminals torched the place, it wasn't "currently" inhabited. Indeed, they made sure of that. By killing the guy. At the time of the torching, there was no one alive. Hence the Court of Appeal's result.

I get it. Makes total sense. Linguistically, even.

And yet.

There's a part of me that's not willing to go that far. Part of me thinks: "Yeah, you could definitely so hold. Such an interpretation of the statute makes linguistic sense. Yet if it's possible to articulate a plausible interpretation of the statute that goes the other way, you know what, I'm down for that. As I really, really don't like the idea that you get a 'bonus' on the arson count for killing someone first."

Plus, I feel darn sure what the Legislature would think about this fact pattern. Beyond a shadow of a doubt. They definitely want stuff like this covered under the "inhabited" arson statute. (And even the Court of Appeal, I think, knows that, saying: "[I]f the Legislature is troubled by the
outcome of this case, it can amend the statute.")

So is a contrary interpretation of the statute plausible? I'm leaning to thinking so.

True, "currently" usually means "now", and "now" would typically mean at the time the structure was burned. But maybe we can legitimately stretch it a bit. Maybe we can reasonably say that in the rare circumstance where the arsonist is the immediate cause of the decedent's death, "currently" may mean at the time of entry into the home. And, if so, in this case, the guy's guilty. Since he entered the house, killed the guy, then burned the thing down.

Seems okay to me. I recognize that this might be a bit of a stretch of the term "currently". But, you know what? We stretch terms a least a tiny bit all the time. If it's a plausible interpretation -- and I am of the slight view that it is -- and it's a better one (which I definitely think is true), then I may be on board for it.

Not only do I think this is what the Legislature would have intended had they thought of this exact fact pattern, but this alternative interpretation also avoids some crazy line-drawing absurdities. What if the arsonist shoots the guy in the house, burns the thing down, but we're not sure whether the guy died seconds before or after the fire got started? (For example, we know he died of the gunshot, since there's no smoke in his lungs, but maybe he bled out before -- or after -- the fire was first started, and had -- or hadn't -- reached his particular room.) I can't fathom it matters in the slightest whether the dude had bled out before or after the exact second of the fire. Yet under the Court of Appeal's holding today, it totally does; it's a dispositive difference. That's definitely not a a statute that I would pass, or one that I want to adopt if I have any other reasonable alternative.

My mind keeps going back, for some reason, to the inheritance cases. Where you don't get to benefit (i.e., inherit the guy's estate) if you were the one who killed the guy. Same deal here. (And, yes, I know there's a specific statute for that. But even before that, it was part of the common law. Why not so here?)

The case also reminds me of the old yarn about the defendant who kills his parents and who pleads for sympathy because he's an orphan. Same here: "You can't find me guilty because I killed the guy first. Ha!"

Again, I recognize that there are definitely legitimate arguments to the contrary. As well as what I think are, in fact, pretty decent analogous precedent the other way. The Court of Appeal says, for example, that if you kill someone before you rape them, and then have sex with them, you're not guilty of "rape" of a live person, but only of the lesser offense of sex with a dead person. And I must admit that such a result seems right to me, and that it's also pretty darn close to what we have here.

Yet there's still part of me that rebels at the resulting conclusion. And still thinks that it might well be reasonable to say that arson's different, and that the defendant is in fact guilty of the greater crime in the present case. And that the statute would be better read in the manner I describe.

I readily concede that, on a practical level, it probably doesn't matter much. The Legislature will, I think rapidly amend the statute here. Why wouldn't it? There's not much of a constituency for the select group of people who kill someone and then burn down their house. By contrast, here's a very easy way to look "tough on crime" and reverse those "crazy liberal judges" on the Court of Appeal.

Plus, even in an individual case, the dude's sentence won't matter much. You've already got him, at least most of the time, for an actual murder charge. Plus, even under the Court of Appeal's holding, an additional arson charge as well (just not of an "inhabited" structure). Permitting a conviction on the greater arson count really won't matter much at all in your run-of-the mill cases.

Nonetheless, there's still a part of me -- a big part -- that wants to allow a conviction here. It seems a plausible interpretation of the statute. It's surely the Legislature's desire. It's probably a much better practical result. So maybe go ahead and do it. Yeah, the Legislature could do it instead. But why wait? We can do it now ourselves.

That's my current take, anyway.

Even though I totally understand where the Court of Appeal is coming from, I might well have gone the other way.

Friday, July 08, 2016

There are several things that seem unseemly about this case. Including but not limited to the one that the panel articulates at the end of its opinion; i.e., that "[i]n reaching our decision, we recognize with regret that
Plaintiffs will suffer severe and significant consequences
from losing their membership in the Pala Band. It is also
plausible that Plaintiffs were disenrolled unjustly. . . ."

There's also the overall unseemliness, at least in my view, of retroactively deciding whether 150 people get a share of casino revenues (which is largely what's at issue here) based on multiple different determinations over a series of decades at to whether a particular person born in 1856 -- Margarita Britten -- was "was a full- or half-blooded
Pala Indian."

There's still something that strikes me the wrong way about counting the "quantum" of racial blood in a particular person.

Even if, as a matter of judicial doctrine, I understand where this comes from, and also why the panel here decides the case the way it does.

Thursday, July 07, 2016

I'm reading Judge O'Scannlain's otherwise unremarkable opinion this morning -- he says that bailiffs don't have absolute immunity when removing a spectator from the courtroom, but may well (as here) have qualified immunity -- when I come across this sentence:

"Brooks and his two compatriots were intent on taking
Reed and Lourcey into custody, apparently at the behest of
AIA Surety, a bail bond insurance company, because the
ladies had allegedly failed to keep the company apprised of
their whereabouts."

That struck me as slightly odd. On the one hand, it's sort of humorous; low-key, witty. Didn't say they "skipped bail" or anything. "Failed to keep the company apprised of their whereabouts" instead.

But there's also that "ladies" part. That's not the way we usually use that term. At least in the modern era. I think most people would say that "the women" (or "these women") had allegedly failed to . . . . "Ladies" seems, at a minimum, archaic.

Now, obviously, I understand that Judge O'Scannlain is nearly 80 years old. And can write in whatever style he wishes.

But I did wonder whether I'd ever seen other Ninth Circuit judges use the term "ladies" in this same way. So I went back and checked all of the published Ninth Circuit opinions during the last decade to see whether that same term appeared. (Ignoring quotes from witnesses, etc.)

And, sure enough, it's definitely a rare occurrence. But, during the last decade, there is indeed a precedent. Exactly one. Only one other time in the last decade has a reported Ninth Circuit opinion used that term in the same way. The relevant sentence in that opinion being: "They walked away from it for
about a mile, with Mr. Boardman in the rear protecting the
ladies with his stick, but the goat would not go away."

Wednesday, July 06, 2016

Everyone on the panel agrees that defendant's arguments are meritless. So much so that the panel doesn't even need oral argument; the case is submitted on the papers.

However, Judge Bybee, joined by Judge Kozinski, are somewhat excited by defendant's Second Amendment claim. He writes an opinion that waxes poetic for a half-dozen pages about what he perceives the limitations to be on the government banning firearms possession by felons. All this despite the fact that he ultimately agrees that precedent clearly forecloses defendant's claim.

Judge Christen concurs, and takes a different approach, saying: "I also agree that our prior
precedent and Supreme Court precedent foreclose Phillips’s
argument that use of his prior conviction as a predicate
offense for his § 922(g)(1) conviction violates the Second
Amendment. Because binding precedent forecloses Phillips’s
Second Amendment argument, I would not engage in further
analysis or discussion of it." And then drops a citation and quote to make clear that everything else that the majority said was dicta.

Friday, July 01, 2016

I'm not even sure how the trial court gets this one wrong. I suspect that the fact that plaintiff is an incarcerated prisoner and pro se litigant has something to do with it. But still.

CCP 352.1 tolls the statute of limitations for a maximum of two years for anyone who's incarcerated "for a term less than life." There's a longstanding, express holding of the Court of Appeal that says that the phrase "for a term less than life" includes prisoners sentenced to life with the possibility of parole.

Mr. Brooks is one of those people. Yet the trial court grants defendant's demurrer, holding that since Mr. Brooks was sentenced to life, he's not entitled to tolling.

Nope. That's wrong. Reversed.

I'm not even sure why defendants bothered to make this argument below. Or to defend the grant of demurrer on appeal. It's obviously wrong. Just a waste of time and money, I'd figure.

But c'est la vie. Their call. In any event, the Court of Appeal easily disposes with this one.